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Andhra High Court · body

2022 DIGILAW 900 (AP)

Namburi Venkata Gopala Panduranga Raju v. Lalam Appa Rao

2022-09-15

V.R.K.KRUPA SAGAR

body2022
ORDER : The defendant before the trial Court has filed this civil revision petition under Article 227 of the Constitution of India questioning the correctness of order dated 10.12.2018 of learned VII Additional District and Sessions Judge, Visakhapatnam in I.A.No.1680 of 2018 in O.S.No.496 of 2017. The respondent herein is the plaintiff before the trial Court. 2. O.S.No.496 of 2017 is based on the agreement for sale dated 13.04.2016. The plaintiff prayed for specific performance of that agreement for sale or in the alternative for refund of the part sale consideration paid along with interest and compensation and for costs and such other reliefs. 3. Traversing those pleadings, the defendant put in his written statement. While the suit was pending, the plaintiff moved an application under Section 151 C.P.C. before the trial Court, which is I.A.No.1680 of 2018. In that petition, it is stated that the defendant in the suit, not only failed to comply with the promise made in the agreement for sale but he was also making several other people suffer and a reference is made to three other cases in which the present suit defendant and others are parties. It further states that plaintiff has apprehension that the defendant may escape with money and defraud everyone in which event the decree that he may obtain may become fruitless and it is in those circumstances, he moved that application. The prayer in that application is to direct the defendant to deposit Rs.42,30,000/- to the credit of the suit. This amount was the amount that was allegedly paid by the plaintiff to the defendant towards part of sale consideration when the agreement for sale was said to have been executed. By the impugned order dated 10.12.2018, the learned trial Court agreed with that submission and granted the relief stating that the defendant in the suit should deposit that money within a month from the date of that order. It is that order which has come up for challenge here. By the impugned order dated 10.12.2018, the learned trial Court agreed with that submission and granted the relief stating that the defendant in the suit should deposit that money within a month from the date of that order. It is that order which has come up for challenge here. The principal contention raised is that on the application that was moved by the present respondent before the learned trial Court, this revision petitioner/defendant in the suit was not even permitted to file counter and further the order suffers from absence of reasons and the order failed to consider that granting a prayer in the nature that was made in the said petition would amount to granting the alternative relief in the suit itself. For all these reasons, revision petitioner seeks to set aside that order. 4. During the course of hearing of this revision, the submission made by the learned counsel for revision petitioner is that the revision petitioner be given opportunity to file counter and agitate his cause. 5. Learned counsel for respondent, while supporting the order made by the trial Court, submits that the said order need not be disturbed since that would not cause any prejudice to either of the parties. However, learned counsel for respondent admits that proper opportunity to file counter was not granted by the learned trial Court to this revision petitioner and in the event of allowing this revision, this Court may instruct the trial Court to dispose of the application by certain time lines that could be prescribed by this Court. Learned counsel on both sides submitted arguments. 6. The point that falls for consideration is: “Whether the impugned order suffers from illegality or irregularity requiring interference? 7. Point: A laconic order is draconic and is thus considered a dud. The application moved by the plaintiff before the trial Court was put up before the trial judge on 23.11.2018 and the trial judge ordered for counter and listed the matter on 30.11.2018. A photostat copy of the docket sheet that is filed with this revision would show that on 30.11.2018 the learned trial judge has not made a mention about the presence or absence of both parties and also did not mention the presence or absence of learned counsel on both sides. It has mentioned ‘counter not filed’ and then struck it off and then recorded Heard. It has mentioned ‘counter not filed’ and then struck it off and then recorded Heard. It is not seen from it, whether he has heard only one side or both sides. Then he posted the matter for orders. On the day to which it was posted for orders, he was unable to pronounce the orders and it went on for two more adjournments and finally, the trial Court passed the order on 10.12.2018, which is now impugned. This makes the matter very clear that this revision petitioner, who was respondent in the proceedings before the trial Court, was not given the required time to file a counter and the trial Court did not record as to why it did not grant time for filing counter and it did not make it on record whether it had forfeited the right to file counter etc. It simply recorded Heard. The fact remains, as is stated by learned counsel on both sides before this Court, the needed opportunity for filing a counter was not given to this revision petitioner. Thus, this fact alone should make this Court to think that the procedure adopted by the trial Court is wholly irregular. Every proceedings before it is required to be considered in the manner that is prescribed by law. When an application for a relief is prayed, proper opportunity to ventilate the contentions by the opposite side should be afforded to and only then both sides be heard and the judge has to take a considered view and record its order. Since such primary principle of law is not found compliance, the impugned order shall be held as irregular and shall be set aside. Coming to the order that is passed, the same is extracted here : “This petition is filed U.Sec.151 of C.P.C. to direct the respondent/defendant to deposit the account amount sum of Rs.42,30,000/-. The reason assigned by the petitioner for filing this petition is the respondents indebted to several others and trying leave the jurisdiction of this Court. If the respondents succeed his effort there is no possibility to the petitioner either specific performance of contract and also taking back of advance (Earnest) amount. The respondent though opposed not chosen to furnish security. Considering the fact, representation of the counsel of the petitioner and urgency pleaded by the petitioner, this petition can be allowed. If the respondents succeed his effort there is no possibility to the petitioner either specific performance of contract and also taking back of advance (Earnest) amount. The respondent though opposed not chosen to furnish security. Considering the fact, representation of the counsel of the petitioner and urgency pleaded by the petitioner, this petition can be allowed. In the result, the respondent is directed to deposit the advance (Earnest) amount within a month.” 8. This order itself indicates that the trial Court did not even think to consider the version of the respondent therein. It simply extracted the apprehension of the petitioner in its order and then passed the order. This order does not indicate to any judicial mind as to whether the required principles of law were at all considered by the trial Court. Since the order is bereft of required reasoning and required consideration of the material, the same is liable to be set aside. Point is answered in favour of the revision petitioner. 9. In the result, this Civil Revision Petition is allowed setting aside the order dated 10.12.2018 in I.A.No.1680 of 2018 in O.S.No.496 of 2017 on the file of learned VII Additional District and Sessions Judge, Visakhapatnam. I.A.No.1680 of 2018 is restored. The trial Court shall grant opportunity to the respondent in I.A.No.1680 of 2018 to file his counter within 15 days from the date of taking up the suit at the Bench after receipt of this order and after such 15 days, within a period of 30 days, it shall complete the enquiry in that application and dispose of it in accordance with law. Parties to the litigation are directed to participate in the legal process with all expedition. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.